Remanded

Sudhani, D/O.Kochuvava v. Shalini M.P.

Kerala HC2 Nov 2012Mat.Appeal/366/2012

Case brief

AI extract

What is this about?

This matrimonial appeal challenged an order dismissing anExecution Application regarding sale execution. The High Court set aside the impugned order due to the absence of the auction purchaser, remanding it with costs and a one-month stay on the sale certificate, while penalizing appellants for procedural default.

What did the court decide?

Set aside impugned order; remanded to Family Court; stay on sale certificate for one month; ceil appellants with costs.

Sudhani, D/O.Kochuvava Vs Shalini M.P. — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934 Mat.Appeal.No. 366 of 2012 () ----------------------------E.A.NO.51/12 IN E.P.NO.6/08 IN OP.1136/2006 of FAMILY COURT,ERNAKULAM

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APPELLANTS/PETITIONERS:

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SUDHANI, D/O.KOCHUVAVA, KANJIYATH HOUSE, KAMMATTIPADAM COCHIN -20. 2. AMMINI W/O.KOCHUVAVA, -DO3. RINI, W/O.PRATHAPAN, -DO4. MINI D/O.KOCHUVAVA, -DO5. GINIL S/O.KOCHUVAVA, -DOBY ADV. SRI.P.J.JOSEPH PANIKKASSERY

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RESPONDENTS/RESPONDENTS:

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SHALINI M.P. MEELAKATHARA HOUSE, NADUVATHU NAGAR P.O CHERTHALA TALUK, PIN 688 524. 2. SUNIL KUMAR K.K THUNDIPARAMBIL HOUSE, KUMBALAM P.O, KOCHI 682 506. *ADDL.R3. MR. JEEJAN, S/O.THANKACHAN, THUNDATHIL HOUSE, RAIL NAGAR, VYTTILA P.O., KOCHI-19. *ADDL.R3 IS IMPLEADED AS PER ORDER ON I.A.NO.2633/2012 DATED 2.11.2012. R1 BY ADV. SRI.K.S.MOHAMED HASHIM R1 BY ADV. SMT.CAROLIN SINDHU VAZ R1 BY ADV. SMT.S.SEEJA RADDL.3 BY ADV. SRI.JIMMY GEORGE (VATTATHARA) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE &

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BABU MATHEW P. JOSEPH, JJ.

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Mat. Appeal No. 366 of 2012

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------------------------------------------------------------Dated this the 2^nd day of November, 2012

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JUDGMENT

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Pius C. Kuriakose, J.

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Under challenge in this appeal preferred by the strangers to the proceedings before the Family Court is the order passed by the Family Court, Ernakulam in E.A.No.51/2012 in E.P.No.6/2008 in O.P.No.1136/2006. The Registry did not doubt the maintainability of the present appeal. At the Bar also, there is no dispsute regarding the maintainability of the appeal. By the order impugned, the Family Court, Ernakulam on the execution side, dismissed E.A.No.51/2012 filed by the appellant for setting aside the execution of sale. We find that the order is passed by default of the appellants.

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We would have been inclined to restore E.A.No.51/2012 so that further delay in the matter could be

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[M.A.No.366/2012] 2

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avoided. But, we find in E.A.No.51/2012 the auction purchaser who has been impleaded here as additional 3^rd respondent is not made a party. We, therefore, set aside the impugned order and remand E.A.No.51/2012 back to the Family Court, Ernakulam. It is open to the additional 3^rd respondent to get himself impleaded in E.A.No.51/2012 and resist that E.A. The Family Court, Ernakulam is directed to expedite matters and pass revised order in E.A.No.51/2012 early and, at any rate, within three weeks of receiving a copy of this judgment.

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However, as we find lack of diligence on the part of the appellants in prosecuting the matter before the Family Court, we are inclined to order further that the appellants will get benefit of this judgment only subject to the following conditions:

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1. The appellants pay a sum of Rs. 3000/- (Rupees Three thousand only) as cost to the auction purchaser either directly or through the counsel for the additional 3^rd respondent in this Court within 5 days from today and produce receipt before the Family Court.

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1. The appellants will pay Rs.1500/- as cost to the first respondent also within the same time limit and

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[M.A.No.366/2012] 3

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produce receipt before the Family Court. If the Family Court notices receipts against payment of the two amounts mentioned above on time, the Family Court will repost E.A.No.51/2012. If the additional 3^rd respondent files an application for getting himself impleaded in E.A.No.51.2012, the above E.A. shall be allowed. Considering the above directions, there will be a further direction that the sale certificate prepared on the basis of the sale in this case will not be issued to the auction purchaser for a period of one month from today.

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The Mat. Appeal is disposed of as above.

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Sd/PIUS C. KURIAKOSE, JUDGE.

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Sd/- BABU MATHEW P. JOSEPH, JUDGE.

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krs.

Sudhani, D/O.Kochuvava v. Shalini M.P.

Case brief

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Sudhani, D/O.Kochuvava v. Shalini M.P.

Case brief

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